Filed 7/24/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

LEANNE HOLLINGSWORTH et al.,

Petitioners,

v.

THE SUPERIOR COURT OF LOS 

ANGELES COUNTY et al.,

 Respondents;

HEAVY TRANSPORT, INC., et al.,

Real Parties in Interest.

 B297658

 (Los Angeles County

 Super. Ct. No. BC690999/

 ADJ11235905)

ORIGINAL PROCEEDINGS in mandate and to review a 

decision of the Workers’ Compensation Appeals Board. Mark C. 

Kim, Judge. Petition granted.

Murray & Associates and Murray D. Lawrence; Frances L. 

Diaz for Petitioners.

Anne Schmitz, Allison J. Fairchild and Peter Ray for 

Respondent Workers’ Compensation Appeals Board.

No appearance for Respondent Superior Court of Los 

Angeles.

Gray Duffy and John Joseph Duffy for Real Parties in 

Interest.
2

INTRODUCTION

“Pursuant to constitutional mandate, the Legislature has 

vested the Workers’ Compensation Appeals Board (WCAB) with 

exclusive jurisdiction over claims for workers’ compensation 

benefits. (Cal. Const., art. XIV, § 4, Lab. Code, § 5300.)” (La 

Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co.

(1994) 9 Cal.4th 27, 35.) Thus, in an action involving a worker 

injured during his or her employment, “the superior court and the 

WCAB . . . ‘do not have concurrent jurisdiction over the whole of 

the controversy, and one of them will be without jurisdiction to 

grant any relief whatsoever, depending upon whether or not the 

injuries were . . . covered by the workmen’s compensation laws.’” 

(Ibid.) “The only point of concurrent jurisdiction of the two 

tribunals is jurisdiction to determine jurisdiction; jurisdiction 

once determined is exclusive, not concurrent.” (Ibid.) 

This case presents the question of which tribunal—the 

superior court or the WCAB—had jurisdiction to determine which 

tribunal had exclusive jurisdiction. The Supreme Court has 

made clear that when a civil action and a workers’ compensation 

proceeding are concurrently pending, “the tribunal first assuming 

jurisdiction” should determine exclusive jurisdiction. (Scott v. 

Industrial Acc. Commission (1956) 46 Cal.2d 76, 81 (Scott).) 

Here, the superior court exercised jurisdiction first, so the court 

had jurisdiction to decide which tribunal has exclusive 

jurisdiction. The court erred by staying the civil case to allow the 

WCAB to decide that issue, and the WCAB erred by proceeding 

without deference to the superior court. We therefore grant 

plaintiffs’ petition.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. Workers’ compensation exclusivity

“As a general rule, an employee who sustains an industrial 

injury ‘arising out of and in the course of the employment’ is 

limited to recovery under the workers’ compensation system.” 

(Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 

1001.) “The underlying premise behind this statutorily created 

system of workers’ compensation” is a bargain in which “‘the 

employer assumes liability for industrial personal injury or death 

without regard to fault in exchange for limitations on the amount 

of that liability. The employee is afforded relatively swift and 

certain payment of benefits to cure or relieve the effects of 

industrial injury without having to prove fault but, in exchange, 

gives up the wider range of damages potentially available in 

tort.’” (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund

(2001) 24 Cal.4th 800, 811, citing Shoemaker v. Myers (1990) 52 

Cal.3d 1, 16.) For purposes of this matter, it is not disputed that

the fatal injury at issue occurred in the course of the decedent’s 

employment. 

However, “[t]he price that must be paid by each employer 

for immunity from tort liability is the purchase of a workers’ 

compensation policy.” (Hernandez v. Chavez Roofing, Inc. (1991) 

235 Cal.App.3d 1092, 1095.) All employers are required to 

“secure the payment of compensation by obtaining insurance 

from an authorized carrier or by securing a certificate of consent 

from the Director of Industrial Relations to become a selfinsurer.” (Minish v. Hanuman Fellowship (2013) 214 

Cal.App.4th 437, 461; Lab. Code, § 3700.) “If any employer fails 

to secure the payment of compensation, any injured employee or 
4

his dependents may bring an action at law against such employer 

for damages, as if this division did not apply.” (Lab. Code, 

§ 3706.) There is a dispute in this case about whether the 

decedent’s employer had workers’ compensation insurance, and 

therefore whether the claims are restricted to the workers’ 

compensation system. 

B. Procedural background

Kirk Hollingsworth was involved in a fatal accident while 

working for defendant Heavy Transport, Inc. in June 2016. His 

wife, Leanne Hollingsworth, and son, Mark Hollingsworth 

(plaintiffs),1 filed a wrongful death complaint in superior court on 

January 22, 2018. Plaintiffs alleged that Heavy Transport did 

not have workers’ compensation insurance. They also alleged 

that defendant Bragg Investment Company purported to have 

merged with Heavy Transport in 1986, but that the two 

companies had always maintained separate operations. 

Plaintiffs asserted that Bragg “sought to extend Worker’s 

Compensation Benefits” to them. Plaintiffs also alleged that 

defective Bragg equipment contributed to the incident. 

On March 5, 2018, Bragg and Heavy Transport 

(defendants) demurred to plaintiffs’ complaint. They asserted 

that Heavy Transport was a fictitious business name for Bragg, 

and therefore they were the same entity. Bragg had a workers’ 

compensation policy that covered the accident, so plaintiffs’ 

action was barred by workers’ compensation exclusivity. 

Defendants sought judicial notice of several documents they 

 

1 Leanne and Mark Hollingsworth are the petitioners in 

this case, and Bragg Investment Company and Heavy Transport, 

Inc. are real parties in interest. Herein, we refer to these parties 

as “plaintiffs” and “defendants,” respectively.
5

contended supported the demurrer, including documents 

regarding ownership of Heavy Transport and insurance 

information. 

On March 14, 2018, defendants filed an application for 

adjudication of claim with the WCAB. The application listed 

Bragg as the employer, included insurance information, and 

noted that a lawsuit had been filed. 

The trial court denied defendants’ request for judicial 

notice and overruled the demurrer. The court held that plaintiffs 

had adequately alleged an exception to workers’ compensation 

exclusivity, because they had alleged that Heavy Transport was 

the decedent’s employer and it did not have workers’ 

compensation insurance. 

On January 14, 2019, defendants filed an ex parte 

application for an order staying the civil action, Defendants 

asserted that in December 2018 the WCAB determined that the 

accident had occurred in the course of decedent’s employment. 

The WCAB then set a hearing for February 19, 2019 to determine 

if any applicable workers’ compensation insurance covered the 

incident. Defendants noted that plaintiffs had served deposition 

notices and document requests. Defendants asked that the civil 

case be stayed until the WCAB determined the insurance issue, 

which would then determine which tribunal had exclusive 

jurisdiction. 

Plaintiffs opposed defendants’ request for a stay, asserting 

that evidence showed that decedent was employed by Heavy 

Transport, not Bragg, and there was no indication that Heavy 

Transport had workers’ compensation insurance. Plaintiffs 

asserted that defendants’ attempt to cast Bragg as the employer 

was an effort to “escape responsibility” for the incident. 
6

Judge Stephen Goorvitch heard defendants’ ex parte 

application and partially granted it. The court noted that there 

was a factual dispute about the identity of decedent’s employer 

and whether the employer was insured, and “Plaintiffs are 

entitled to conduct discovery to attempt to resolve these issues.” 

The court granted defendants’ request for a stay of discovery 

“except with respect to discovery concerning the identity[2], 

employment, and insurance issues in this case.” The court also 

found the case to be complex, and transferred it to a new 

department. 

On March 11, 2019, plaintiffs filed a request for a 

preliminary injunction “to preserve [the trial] court’s 

jurisdiction.” Plaintiffs stated that they also had filed a motion 

with the WCAB to stay those proceedings, but “[r]ather than 

grant the motion, the WCAB set the case for trial before a WCAB 

arbitrator on June 6, 2019, on the issue of insurance coverage, 

which is the exact issue retained by this Court for decision.” 

Plaintiffs cited Scott, supra, 46 Cal.2d 76, which we discuss in 

greater detail below. In short, Scott held that where there is a 

jurisdictional dispute about whether the superior court or a 

workers’ compensation tribunal has exclusive jurisdiction over a 

claim, both the superior court and the workers’ compensation 

tribunal have concurrent jurisdiction to determine exclusive 

jurisdiction, and the tribunal that first exercised jurisdiction 

should determine exclusive jurisdiction. (Scott, supra, 46 Cal.2d 

at pp. 81, 89.) Plaintiffs requested a preliminary injunction to 

“preserve the status quo” until the trial court determined 

jurisdiction. 

 

2 It appears the court was referencing questions about 

whether Bragg and Heavy Transport were a single entity.
7

Defendants opposed the motion, noting that Labor Code 

section 5955 explicitly states that a superior court does not have 

the authority to “suspend or delay the operation or execution 

thereof, or to restrain, enjoin, or interfere with the appeals board 

in the performance of its duties.” Defendants also asserted that 

plaintiffs had not established a reasonable probability of 

prevailing on the merits. 

Judge Mark C. Kim heard the matter and took it under 

submission. The court later denied plaintiffs’ motion in a written 

ruling, stating that plaintiffs “do not offer any evidence 

supporting a probability of prevailing on the merits.” The court 

also stated that plaintiffs had not “presented any authority for 

the Court to stay a pending WCAB case.” In addition, the court 

stated, “Plaintiff [sic] also has not indicated why a WCAB trial on 

the issue of insurance is an issue.” 

The court further stated that on its own motion, upcoming 

discovery motion hearings were vacated, and all further discovery 

was stayed. The court set a status conference regarding the 

WCAB proceedings for June 27, 2019. 

Plaintiffs filed a petition for writ of mandate in this court, 

and requested that we issue an order staying the June 6 

arbitration scheduled in the WCAB proceeding. We issued an 

alternative writ and an order staying the WCAB proceedings, and 

requested briefing from the parties. Defendants and the WCAB 

each filed a return, and plaintiffs filed a reply. The superior 

court did not appear. The matter proceeded to oral argument. 

DISCUSSION

This case presents a relatively simple question: Which 

tribunal—the superior court or the WCAB—should resolve the 

questions that will determine whether the superior court or the 
8

WCAB has exclusive jurisdiction over plaintiffs’ claims? The 

Supreme Court in Scott, supra, 46 Cal.2d 76, decided this issue in 

1956, and held that whichever tribunal exercised jurisdiction first 

should make the necessary findings to determine which tribunal 

has exclusive jurisdiction over the remainder of the matter. We 

follow that rule here, and find that the trial court erred by 

deferring to the WCAB to determine jurisdiction.

In Scott, an injured “invitee” filed a lawsuit in superior 

court, and the defendant company pled as an affirmative defense 

that the Industrial Accident Commission had “exclusive 

jurisdiction for the injuries claimed by plaintiff.” (Scott, supra, 46 

Cal.2d at p. 79.) Later, the “defendant in the superior court 

action and State Compensation Insurance Fund as its workmen’s 

compensation insurance carrier filed with the Industrial Accident 

Commission an application for adjustment of claim arising out of 

the same personal injuries as those alleged by plaintiff in the 

superior court action.” (Id. at pp. 79-80.) After additional 

proceedings in both tribunals, the case reached the Supreme 

Court, which considered “whether the Industrial Accident 

Commission may, and should, be required to suspend the exercise 

of its jurisdiction in the proceeding before it because of the 

pendency of the action in the superior court.” (Id. at p. 81.)

The court noted that “the two tribunals involved[,] the 

superior court on the one hand and the commission on the 

other[,] do not have concurrent jurisdiction over the whole of the 

controversy, and one of them will be without jurisdiction to grant 

any relief whatsoever, depending upon whether or not the 

injuries were suffered within the course and scope of an 

employment relationship and so covered by the workmen’s 

compensation laws. In other words . . . , the only point of 
9

concurrent jurisdiction of the two tribunals appears to be 

jurisdiction to determine jurisdiction; jurisdiction once 

determined will be exclusive, not concurrent.” (Scott, supra, 46 

Cal.2d at pp. 82-83.) The court added, “It is elementary that the 

type and extent of relief which can be granted and the factors by 

which such relief is determined differ materially between the two 

tribunals; the superior court cannot award workmen’s 

compensation benefits, and the commission cannot award 

damages for injuries.” (Id. at p. 83.)

The Scott court held that “the general rule long recognized 

as governing tribunals whose jurisdiction is generally concurrent 

should be applied here where jurisdiction to determine 

jurisdiction is concurrent.” (Scott, supra, 46 Cal.2d at p. 89.) 

Under this rule, “When two or more tribunals in this state have 

concurrent jurisdiction, the tribunal first assuming jurisdiction 

retains it to the exclusion of all other tribunals in which the 

action might have been initiated. Thereafter another tribunal, 

although it might originally have taken jurisdiction, may be 

restrained by prohibition if it attempts to proceed.” (Scott, supra, 

46 Cal.2d at p. 81.) The court stated that its intent was to 

“declare a simple workable rule upon the law as it exists.” (Id. at 

p. 89.)

Later the same year, the Supreme Court followed Scott in 

Taylor v. Superior Court (1956) 47 Cal.2d 148. The court 

summarized the holding of Scott: “The Scott case holds that 

where two tribunals in this state have concurrent jurisdiction to 

determine jurisdiction, the question of which shall have exclusive 

jurisdiction shall be determined by the tribunal whose 

jurisdiction was first invoked, and proceedings in the tribunal 

whose jurisdiction was subsequently sought will, if not 
10

voluntarily stayed, be halted by prohibition until final 

determination of the jurisdictional question by the tribunal 

where jurisdiction was first laid.” (Taylor, supra, 47 Cal.2d at p. 

149.) The court noted that the employee “first invoked the 

jurisdiction of the commission and thereafter sought that of the 

superior court to adjudicate his claims as to the same injury.” 

(Id. at p. 151.) The court continued, “Therefore, under [Scott], the 

superior court should not try the case until the commission has 

made a final determination of the issue as to whether it or the 

court has jurisdiction to proceed; i.e., as to whether [the 

employee’s] alleged injuries are covered by the workmen’s 

compensation laws so far as concerns his claims against 

petitioner. Meanwhile, the commission should proceed to a 

determination of such issue. Its adjudication, when final, will be 

conclusive on all parties.” (Ibid.) 

Here, the superior court exercised jurisdiction first. 

Plaintiffs’ complaint was filed on January 22, 2018, and 

defendants’ demurrer was filed on March 5, 2018. Defendants’ 

WCAB application was filed on March 14, 2018. Under Scott, the 

appropriate tribunal to determine the question of exclusive 

jurisdiction is the superior court, because that tribunal exercised 

jurisdiction first.

The WCAB acknowledges the holding of Scott, but argues 

that no error occurred. It asserts, “Even if it is assumed 

arguendo that the [superior court] holds precedential jurisdiction 

to determine jurisdiction pursuant to Scott, the [court] deferred 

jurisdiction to the WCAB on the issue of insurance coverage.” 

The WCAB cites Sea World Corp. v. Superior Court (1973) 34 

Cal.App.3d 494 (Sea World), in which the plaintiff “suffered 

physical injury of undetermined character and extent as the 
11

result of having bestridden a killer-whale owned by Sea World, 

an action she took at the request of Sea World, made through her 

supervisor at a time when she was employed as a secretary by 

Sea World.” (Id. at p. 496.) The plaintiff alleged in a civil action 

that she was not acting in the scope of her employment at the 

time. (Id. at p. 497.) A WCAB proceeding was also initiated the 

same day, and Sea World contended that “WCAB has a priority of 

right to determine the threshold question of subject matter 

jurisdiction because it first obtained jurisdiction over the parties 

as a result of the service effected four days before the superior 

court obtained jurisdiction over all the parties.” (Id. at p. 497.)

It appears that the parties in Sea World did not 

immediately address the threshold issue of exclusive jurisdiction. 

Instead, Sea World moved for summary judgment in the superior 

court, thus “the jurisdiction of the superior court was invoked 

specifically by Sea World to make the threshold determination 

based upon what was originally claimed to be a showing of 

undisputed facts.” (Sea World, supra, 34 Cal.App.3d at p. 502.)

Sea World’s later attempt to question the superior court’s 

jurisdiction contradicted its earlier motion for summary 

judgment: “Sea World’s motion was not to stay proceedings in 

the superior court because of the claimed prior right of WCAB, 

but was for summary judgment, calling for a determination of the 

issue which Sea World now says the superior court might not 

determine because WCAB had the prior right to do so.” (Id. at p. 

503.) The Court of Appeal held that as a result, “Sea World has 

waived, or is estopped to urge, objection to the jurisdiction which 

it has invited the superior court to exercise, which the superior 

court has exercised, which exercise has been followed by a 
12

suspension of proceedings before WCAB amounting to a waiver 

by that tribunal of its priority of right.” (Id. at p. 503.)

The WCAB cites the statement in Sea World that 

“[p]recedential jurisdiction”—concurrent jurisdiction to determine 

exclusive jurisdiction—“may be the subject of waiver by the court 

having it.” (Sea World, supra, 34 Cal.App.3d at p. 501.) Indeed, 

in Sea World the court cited Scott and several similar cases, and 

noted that “the court where jurisdiction first attaches may yield 

it, and that it is the right of the court to insist upon or waive its 

jurisdiction.” (Sea World, supra, 34 Cal.App.3d at p. 499.) Here, 

however, the evidence does not support a finding of waiver or 

estoppel, and neither the WCAB or defendants assert facts to 

support such a finding. To the contrary, from the initiation of the 

action, plaintiffs and defendants consistently asserted their 

respective positions regarding jurisdiction, unlike the employer in 

Sea World. Thus, waiver or estoppel does not compel us to depart 

from the rule in Scott. 

Moreover, the record does not support the WCAB’s 

characterization that the superior court’s deference of jurisdiction 

was intentional rather than erroneous. The court stated that 

plaintiffs had not “indicated why a WCAB trial on the issue of 

insurance is an issue,” suggesting that the court did not recognize 

that the insurance question was central to the issue of exclusive 

jurisdiction. Moreover, the court focused on the traditional 

standards for a preliminary injunction3 and court’s lack of 

 

3 “[A]s a general matter, the question whether a 

preliminary injunction should be granted involves two 

interrelated factors: (1) the likelihood that the plaintiff will 

prevail on the merits, and (2) the relative balance of harms that 
13

authority to impose a stay under Labor Code section 5955. Thus, 

the record does not support a finding that the trial court 

intentionally “waived” jurisdiction. 

The WCAB and defendants also assert that the rule in 

Scott may be disregarded so as long as proceedings in one 

tribunal are stayed, so there is no risk of inconsistent rulings. 

Defendants assert, “While Scott does address similar issues 

associated with concurrent jurisdiction, the reasoning behind the 

decision does not apply in this particular case. The Court in Scott

was primarily concerned with the risks of associated with 

multiple tribunals potentially issuing inconsistent rulings. . . . 

That is not an issue here since the Superior Court imposed its 

own stay precluding the possibility of multiple rulings.” 

Defendants argue that the problem in Scott was that “[a]llowing 

both tribunals to continue simultaneously would create the 

possibility for multiple or inconsistent rulings.” Here, the 

superior court “eliminated any risk of multiple or inconsistent 

rulings” by imposing a stay, and therefore there is no need to 

follow the rule articulated in Scott. Similarly, the WCAB asserts 

that “there is . . . no danger of multiple or inconsistent rulings in 

this case” because the superior court “stay[ed] proceedings in the 

civil case pending the outcome of the insurance coverage 

arbitration.” 

We decline to disregard clear Supreme Court precedent 

simply because the trial court avoided the potential for 

inconsistent rulings. Scott provided a “simple workable rule” in 

the situation presented here. The “tribunal first assuming 

jurisdiction retains it” to determine the question of exclusive 

 

is likely to result from the granting or denial of interim injunctive 

relief.” (White v. Davis (2003) 30 Cal.4th 528, 554.)
14

jurisdiction. The first tribunal to assume jurisdiction over the 

issues in this case was the superior court. Under Scott, both the 

superior court and the WCAB erred in their orders allowing the 

questions central to exclusive jurisdiction to be determined by the 

WCAB instead of the superior court.4

DISPOSITION

Let a writ of mandate issue directing the superior court to 

vacate its April 16, 2019 order staying proceedings in this action, 

and directing the WCAB to vacate its hearing to determine 

defendants’ insurance status (originally set for June 6, 2019). All 

proceedings in the WCAB shall remain stayed, and the trial court 

shall conduct further proceedings limited to determining which 

tribunal has exclusive jurisdiction over plaintiffs’ claims. 

Plaintiffs are entitled to their costs in this proceeding.

CERTIFIED FOR PUBLICATION

COLLINS, J.

We concur:

MANELLA, P. J. WILLHITE, J.

 

4 The parties’ filings in this court include lengthy 

arguments about the underlying issues to be determined, 

including whether Bragg and Heavy Transport are the same 

entity, whether Bragg’s workers’ compensation insurance covered 

the incident, and whether plaintiffs’ claims are barred by the 

unclean hands doctrine. These issues are not relevant to the 

questions before us, and therefore we do not address them.